71 So. 111 | Ala. | 1916
Appellant claims to have purchased two tanks of cotton seed oil from appellee, through a commercial broker, one C. G. Hewitt, and that appellee failed and refused to deliver according to the contract; that appellant was forced to go into the market and purchase other oil, and hence sues to recover the difference between the contract price and the price which appellant was compelled to pay in the open market. The •defense of appellee was that it never sold, or agreed to sell, the oil in question to appellant at the price and on the terms claimed by appellant, but that it did agree to sell to the broker at the price of 27 cents per gallon, and he declined to take the oil at the price agreed. This record shows beyond doubt that appellant •did purchase, through Hewitt, and on the terms named, and that appellee declined to sell or ship on those terms, after demand by appellant; that the price of oil was higher, at the time for -delivery, than it was at the time of the alleged sale by appellee
The plaintiff offered to prove by the broker, Hewitt, that after he received the telegram from defendant, as above set out, and before any telephonic or other communication had with defendant, he, the broker, did get prices from dealers in crude oil such as the defendant had offered for sale. The trial court sustained defendant’s objection to this testimony, and plaintiff excepted. The plaintiff .also offered to prove by this witness, Hewitt, that he had made other sales of oil for the defendant, as broker, and that witness did not represent any particular refining, or oil mill, in his sales of crude oil; but the court declined to allow this proof to be made. The plaintiff also offered to prove by this witness,that after he had a telephonic communication with the general manager of defendant, as to the sale of the oil in question, and after reading the telegram above set out, the witness wired various buyers, to get bids on the oil; but the
The plaintiff then offered to prove by the witness Hewitt who sent the telegram,' that it was sent for the purpose of obtaining an offer from the Cincinnati company to purchase the oil. The plaintiff, also in this connection, offered to introduce the answer to this telegram, in which the oil company declined t< purchase; but both offers were denied to the plaintiff, and i1 excepted. The' plaintiff also offered to prove by this witness after the defendant had introduced the copy of the telegran: above set out, that witness sent other telegrams, relating to the particular oil, to other purchasers of crude oils, in order to obtain the best price, and in his endeavor to get 27 cents for the oil; and in this connection the plaintiff offered the telegrams claimed to have been so sent; but the court declined to allow the proof, and the plaintiff excepted.
We are of the opinion that the record shows conclusively that Hewitt was a commercial broker, and was so known to both the plaintiff and the defendant, and that defendant authorized him, as such broker, to sell for it the oil in question. What was said in the case of Stratford v. City Council of Montgomery, 110 Ala. 619, 625, 20 South. 127, 128, defining a commercial broker, is accurate and apt: “A ‘broker’ is defined as ‘an agent employed to make- bargains and contracts between other persons in matters of trade, commerce, or navigation for a compensation commonly called “brokerage.” ’ — Story on Agency (8th Ed.) § 28. Every broker is, in a sense, an agent, but every agent is not a broker. There are, however, so many incidents common to both relations that it is difficult to define the precise line of demarcation.” _
Mr. Mechem, in his excellent work on Agency (volume 2 [2d Ed.] p. 1966, § 2397), has well stated the law as to the authority of commercial brokers to bind their principals: “A broker in the ordinary case is known to be an agent acting under a limited authority. He is usually authorized to buy or sell a particular thing in specified quantities and at a limited price. He is often described in the books as a special agent, and in order to bind his principal he must keep within the limits of the author
On the subject of the broker’s authority to fix the price, the same author (Id. § 2401) proceeds to say: “A broker, who is instructed to buy or sell property, with no limitations as to the price, would have implied authority to agree upon the price and to bind his principal by such agreement, where the broker acts honestly and in good faith, and the price fixed is the usual one, or, where there is no usual price, then a fair and reasonable, and not an extraordinary, one. If there is a market price, that price should govern in the absence of anything indicating a contrary intent on the part of the principal.”
While a broker sometimes represents both parties as to certain matters, and is sometimes spoken of as the agent of both parties, he is not always ex vi termini agent for both; that he is such agent rests upon presumptions which may be rebutted by the attending facts and circumstances. — 2 Pars. Contracts, 292. In Ruling Case Law (volume 4, p. 255), text, the rule is thus stated: “Ordinarily a broker does not act in a dual capacity as the representative of both sides to a negotiation, but only as the agent of the party who first employed him. Once a deal is concluded, however, the law permits him to act as the representative of both parties, if they assent thereto.”
As the judgment must be reversed for the errors pointed out, it is unnecessary to now pass upon the weight or the sufficiency of the evidence, raised only by the motion for a new trial.
Beversed and remanded.